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Conley v. Commonwealth

Supreme Court of Kentucky

June 13, 2019


          CORRECTED: JULY 25, 2019


          COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate, Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General



         The U.S. Supreme Court held in Ake v. Oklahoma, 470 U.S. 68 (1985), 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 application of the principles in Ake by the trial court in this case led to errors that require us to vacate Lara Paige Conley's conviction and 27-year sentence for the murder of her mother and remand the case for a new trial.


         Conley testified that on the night of the incident (March 24, 2015), she and her mother, Carlene Conley, had been arguing, as they frequently did. According to Conley, at one point her mother hit her in the head with a heavy object as Conley was letting her dog out of its cage. After wrestling on the kitchen floor, Conley stabbed Carlene to death. According to Conley, she has no memory of the fight or calling 911.

         Citing KRS[1] 31.185, Conley, who was indigent, initially filed a motion seeking funds to hire a mental health expert to assist her in preparing for trial. She supported her motion with evidence that she has a history of various mental illnesses, including bipolar disorder, disassociation, depression, posttraumatic stress disorder, anxiety, and panic attacks. Further, the circumstances surrounding the murder, including 77 stab wounds, 27 incise wounds, and two bite marks to Carlene's body, raised clear indications that there were potentially significant mental health issues involved in the case that might prove crucial to Conley's defense.

         Stating that the motion "failed to establish reasonable necessity," the trial court denied the motion. In lieu of authorizing funds for a private expert witness, the court instead ordered Conley to KCPC[2] for a mental evaluation that was conducted by staff member Dr. Amy Trivette. That order was in substitution of Conley's request for an independent mental health expert.

         Following the completion of Dr. Trivette's report, the trial court reversed its initial ruling and held that Conley was entitled to an independent mental health expert under Ake, and it authorized funds for Conley to retain Dr. Ed Conner as an expert witness. The Commonwealth subsequently invoked its right to a mental health expert to contest Dr. Conner's findings and opinions. See RCr[3] 8.O7(2)(B). The trial court resolved the Commonwealth's request for an expert witness by effectively repurposing Dr. Trivette from her initial role as Conley's witness to the new role of being the Commonwealth's witness. Under this ruling, Dr. Trivette "changed sides" and became a witness against Conley.

         At the end of the trial, the trial court instructed the jury on wanton and intentional murder, first-degree manslaughter (extreme emotional disturbance (EED) with no intent to kill), second-degree manslaughter, and all perfect and imperfect self-protection defenses. The self-defense instructions included, over Conley's objection, an initial aggressor qualification instruction. The jury found Conley guilty of murder and recommended a sentence of 27 years in prison. The trial court entered a judgment consistent with the jury's verdict and sentencing recommendation. This appeal by Conley followed.


         Conley initially filed an ex parte motion for funds to retain Dr. Ed Connor "to assist with preparation of the client's defense." In her motion Conley informed the court that she had records documenting her history of mental health issues and that she had consumed large quantities of vodka daily, had not slept in three or four days, and had ingested a very large quantity Dramamine close in time to the stabbing. The motion further noted that Conley had suffered injuries the night of the stabbing and had been treated previously for abuse by her mother.

         The motion also specifically stated it would not be appropriate to send Conley, who was indigent, to KCPC because "by their own admission and policy they cannot act as a defense expert witness." Conley attached a letter from KCPC to that effect to her motion. KCPC stated in its letter that it "cannot act in the capacity of a defense expert," that KCPC's "interviews with inmates are not confidential," and that "we do not consult with defense attorneys to help them cross-examine prosecution witnesses." In other words, the KCPC letter indicated it would not provide its services as an independent mental health expert loyal to the defense such as would be expected under Ake principles.

         The trial court denied Conley's motion for funds to hire Dr. Connor on the basis that the defense "failed to establish reasonable necessity for same." See Woodall v. Commonwealth, 63 S.W.3d 104, 126 (Ky. 2001) (the standard of review for a claim of error with respect to a court's denial of a defendant's motion for funding to conduct additional neuropsychological testing is whether there was a reasonable necessity for such funding). Under the circumstances of this case, where Conley had an extensive history of prior mental illness, her potential intoxication at the time of the stabbing, and, most importantly, the horrendous injuries that were inflicted upon her own mother, we conclude the trial court erred by denying Conley funds to hire Dr. Conner at the time of this initial ruling.

          In lieu of providing funds for a mental health expert, the trial court instead, inconsistently with the objective of Conley's motion, referred her to KCPC for a criminal responsibility examination. The trial court obviously intended its ruling to be that the KCPC examination would be for Conley's benefit and use in the preparation of her defense and in substitution for her request for a private mental health expert. Clearly, KCPC interpreted the order that way as well because upon the completion of her report, Dr. Trivette sent it directly to defense counsel. Thereafter, Conley was admitted to KCPC and evaluated by Dr. Amy Trivette, who concluded that Conley was not absolved from her involvement in the death by reason of insanity.

         Conley subsequently renewed her request for expert witness funds to hire Dr. Connor. In her motion Conley contended that Dr. Trivette's examination was insufficient because all KCPC did was examine her for criminal responsibility, but that she needed an independent expert such as Dr. Connor who would investigate and evaluate all her psychological issues, including other possible relevant mental health issues, possible EED issues, and potential mitigation factors at sentencing.

         Ultimately, the trial court relented, reversed its original ruling, and allocated funds for Conley to retain Dr. Conner as a mental health expert witness. Because of other continuing errors relating to the issue, however, this belated allocation of funds to retain Dr. Conner did not fully cure the prejudice associated with the initial error in denying Conley's motion for expert witness funds and instead sending her to KCPC.

         Subsequently, Conley filed notice of her intention to introduce expert testimony relating to mental illness as to the issues of guilt and punishment pursuant to RCr 8.O7(2)(A)(iii). In response the Commonwealth filed a motion for a rebuttal mental health examination pursuant to RCr 8.O7(2)(B). In its motion the Commonwealth stated it wanted the KCPC criminal responsibility report prepared by Dr. Trivette in lieu of a separate independent mental health examination, and it requested a copy of her report from defense counsel. Defense counsel refused to provide the report, stating the Commonwealth was not entitled to Dr. Trivette's report because Conley was not raising an insanity defense. The Commonwealth responded that it appeared the defense was going to mount an EED defense and that it was entitled to the report.

         Conley noted she had not wanted to go to KCPC in the first place, but the court would not give other funding. Therefore, she maintained she was, in effect, forced into that situation because, as the trial court's order in sending her to KCPC was part of the defense investigation, the report was protected attorney-client work product, and the Commonwealth was therefore not entitled to it. In opposition to providing the KCPC report, Conley also noted she had now retained an independent mental health expert, Dr. Conner, and that the Commonwealth would receive his report when complete. She further argued that the Commonwealth was not entitled to the KCPC report because she would not be using the report at trial.

         The Commonwealth maintained it should get the KCPC report because it would moot the need for an independent mental health examination as a rebuttal to Dr. Conner. Conley agreed the Commonwealth was entitled to their own examination of Conley pursuant to RCr 8.O7(2)(B), but she contended the Commonwealth was not entitled to the KCPC report because it was protected defense work product, and further, it would create a conflict of interest if the Commonwealth were to be adjudged entitled to the report. Conley argued that the only reason the Commonwealth would be entitled to the KCPC report was if she were mounting a criminal responsibility defense-an insanity defense- which she was not.

         The trial court initially agreed with Conley that it was a conflict of interest for the Commonwealth to get the KCPC report but held that the Commonwealth was otherwise entitled to have Conley independently evaluated. The trial court also acknowledged it had forced Conley to go to KCPC and if Conley was not indigent, she would not have been sent there and the Commonwealth would not have known she had been examined for criminal responsibility and/or other mental health issue defenses in mitigation. Based upon these factors, the trial court denied the Commonwealth's request for Dr. Trivette's report.

         While the foregoing possibly may have salvaged the original error in failing to timely grant Conley's motion for funds for a mental health expert, that prospect disappeared when the trial court backtracked and instead entered an order granting the Commonwealth the right to a copy of Dr. Trivette's report. More importantly, the effect of the trial court's February 3, 2017, order was to designate Dr. Trivette as the Commonwealth's mental health expert, thereby switching Dr.. Trivette from Conley's side to the Commonwealth's side.

         The trial court held it would be counter-productive to require the Commonwealth to procure another evaluation of Conley concerning her criminal responsibility when Dr. Trivette had already undertaken that evaluation. The trial court also entered another short-lived order directing Conley's statements made during the Dr. Trivette's examination would not be admissible, though it later reversed this ruling as well, which further extended the original error by permitting what was originally Conley's expert, Dr. Trivette, to later impeach Conley at trial with the fruits of the KCPC examination.

         A. The court should have summarily granted funds for a defense examination pursuant to Ake v. Oklahoma

         Conley contends the trial court erred by failing to grant her initial request for funds to hire a mental health professional and instead ordered that a criminal responsibility examination be conducted by KCPC. Conley maintains that this action, in effect, assigned KCPC, an institution that had explicitly represented it could not fulfill that duty, the function of providing a staff psychiatrist to act as Conley's mental health professional. We agree.

         Based upon the U.S. Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68 (1985), and our holding implementing the Ake standard in Binion v. Commonwealth, 891 S.W.2d 383 (Ky. 1995), we agree with Conley that, as an indigent, her constitutional right to the appointment of an independent mental health professional was violated by the trial court's denial of her initial request for funding for a mental health expert and instead ordering her to KCPC. We further hold that subsequent events, including the trial court's eventual allocation of funds to hire Dr. Conner, failed to adequately remediate that initial constitutional violation and that this initial constitutional deprivation was not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).

         The facts in this case immediately called into question Conley's mental condition. As noted in the autopsy report, Conley did not merely stab her mother to death; rather, in causing her death, Conley stabbed her mother 77 times, cut her 27 times, and bit her at least twice. The circumstances compel an instantaneous doubt concerning the mental condition of anyone who would commit such a vicious act against her own mother.

         "[I]f 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 mental health expert who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense." Binion v. Commonwealth, 891 S.W.2d 383, 385 (Ky. 1995), citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (holding indigents have a right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the same access to necessary mental health expert assistance as a person of means).

         Based upon the extreme violence associated with Conley's stabbing of her mother, along with the other factors contained in Conley's motion, including her mental health history, "[c]ertainly, there was a reasonable basis" to conclude Conley "was suffering from insanity or acting from a diminished capacity during the commission of the crime and that [she] was entitled to either the appointment of, or the funds necessary, to employ a competent mental health expert for assistance in the evaluation and presentation of his defense." See Binion at 385 (citing KRS 31.185 and KRS 31.200).

         Based upon the extraordinary circumstances of this case, it was evident from the outset that Conley's sanity at the time of the offense had the potential to be a significant factor at trial, and thus it was the trial court's duty to assure Conley had access to "a competent mental health expert who [would] conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense." Ake at 83. And, KCPC would not provide that assistance.

         The Commonwealth argues that KRS 31.185 gave the trial court discretion in its allowance of funds for an expert witness. KRS 31. l85(1) provides as follows:

Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet.

(emphasis added).

         Through its use of the term "may," KRS 31.185(1) confers the trial court with a degree of discretion in evaluating whether the use of KCPC or any other state facility is "practical" in an individual case. "Under [KRS 31.185] the authorization to use private facilities paid for by public funds is a matter within the discretion of the trial judge based on a finding that the use of state facilities is impractical." Binion at 385 (citing Hicks v. Commonwealth, 670 S.W.2d 837 (Ky. 1984)); see also White v. Commonwealth, 500 S.W.3d 208, 212 (Ky. 2016)[4]("Nothing in this provision requires the use of private psychological evaluations to be paid for with public funds. That determination is within the discretion of the trial court.") (emphasis in original), and Commonwealth v. Wooton, 269 S.W.3d 857 (Ky. 2008). While the statute gives discretion to the trial court in allotting funds for private facilities or expert witnesses, such discretion cannot be deemed to be unfettered considering Ake and Binion.

         Under these circumstances, we conclude the trial court abused its discretion by refusing to grant Conley's initial motion for mental health expert witness funding and instead sending her to KCPC. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) ("The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.").

         The Commonwealth argues on appeal, however, that any error in the trial court's failure to initially grant Conley's motion to retain an expert was harmless because Conley was later granted the funds to retain Dr. Conner, and thus any initial error was thereby cured. We conclude, however, that any mitigating effect in the belated award of funds to hire Dr. Conner was negated by the derivative errors associated with the initial ruling. These included the forcing of Conley to a KCPC examination by Dr. Trivette, whose assistance manifestly did not meet the Ake standard based upon KCPC's own disclaimer.

         In considering the harmlessness of the above errors, Dr. Trivette's "side switching" is crucial to our review. In State v. Larkin, 443 S.W.3d 751 (Tenn. Crim. App. 2013), the Court of Criminal Appeals of Tennessee addressed the issue of a defense expert's "switching sides" to testify for the prosecution after first assisting the defendant:

[A]n expert witness' switching sides and opinions after working for the defense places defense counsel at trial in the "untenable position" of both needing to accredit the expert's first opinion while simultaneously needing to discredit the expert's subsequent opinion. A focus on issues of confidentiality completely overlooks this crucial aspect of a criminal defendant's constitutional rights to counsel, to present a defense, and to confront his accusers.

Id. at 793.

         Despite the Tennessee court's concerns, it declined to apply a per se disqualification rule for experts who switch sides. Id. at 798. The Court instead adopted the following test for evaluating these situations:

[T]he appropriate test to be applied for assessing whether an expert witness who previously was employed as an expert on behalf of a defendant later may testify as an expert for the State on the same or substantially similar subject matter in a subsequent criminal prosecution of the defendant is whether an ordinary person knowledgeable of all the relevant facts would conclude that allowing the expert to switch sides poses a substantial risk of disservice to the public interest and/or the defendant's fundamental right to a fair trial. Additionally, in making this determination, trial courts should consider the following nonexclusive list of factors: (1) whether the State could have obtained a different expert witness and, if so, under what conditions; (2) whether the defendant hired the expert first in order to preclude the State from using the expert; (3) whether, in addition to switching sides, the expert switches opinions; (4) whether the expert obtained any confidential or privileged information from the defendant; (5) the expert's reasons for switching sides and, if relevant, the reasons for changing his or her opinions; (6) the significance of the issue about which the expert is testifying; (7) the terms of the prior relationship between the defendant and the expert; and (8) the timing of the expert's switching sides.

Id. at 801.

         We believe the analysis adopted by Tennessee in Larkin presents an accurate and practical test for evaluating whether it is proper for expert witnesses to switch sides under circumstances such as this. And, while we need not go into each factor listed in this test in detail, we note that the Commonwealth here could have obtained an expert witness other than Dr. Trivette in consideration that she had first served as Conley's expert; that Conley did not hire Dr. Trivette first in order to preclude the Commonwealth from using the expert, but rather Dr. Trivette was forced upon her in lieu of her request for a private mental health expert; that Dr. Trivette did obtain confidential or privileged information from Conley during the KCPC examination; that Dr. Trivette's reason for switching sides was as a result of the trial court's error in, in effect, mandating that she do so in its February 3, 2017, order; and that the issue about which Dr. Trivette was testifying was of crucial significance to Conley's defense.

         Even though the trial court eventually permitted funds to Conley to retain Dr. Conner, because the trial court at the same time permitted the

          Commonwealth to commandeer Dr. Trivette to testify against Conley, the trial court's subsequent ruling did not fully "get the train back on the tracks" because of the side-switching error (which, as further explained below, resulted in yet other derivative errors). Further, the error at issue was of a constitutional magnitude because it deprived Conley of the same advantage as would be available to a person of means as required in Ake. A person of means would not have been subjected to the initial denial of funds or being sent to an institution that declared it could not act as an independent defense expert and would not have been subjected to the side-switching.

         "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Winstead v. Commonwealth, 283 S.W.3d 678, 689 n. 1 (2009) (citing Chapman v. California, 386 U.S. 18 (1967); RCr 9.24 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties."); see also Spears v. Commonwealth, 448 S.W.3d 781, 787 (Ky. 2014).

         Conley did not ultimately seek total exoneration for her mother's death by reason of insanity. By reason of the horrible nature and number of the wounds, Conley's history of mental illness, and the apparent presence of various substances in her body that evening, she likely had a plausible EED defense to potentially lower her culpability to first-degree manslaughter. The development of that defense could have been aided by a mental health expert from the outset.[5] Further, a mental health expert would have been crucial to her development of mitigation evidence during the sentencing phase of the trial. Under the totality of the circumstances, with one misstep after another, all flowing from the initial error of failing to allow funds for a mental health expert from the outset, we are unable to conclude that the errors described were harmless beyond a reasonable doubt.

         We note, however, that the trial court's rulings perhaps were understandable due to the lack of clearer guidance from the appellate courts concerning how situations such as this should be approached. Given the stark facts of this case, we use this opportunity to expand upon our holding in Binion and further clarify the appropriate use of KCPC in cases involving criminal responsibility and associated defenses and to further discuss a defendant's entitlement to the appointment of a mental health expert under Ake in contrast to whether a defendant is competent to stand trial under KRS 504.100 and RCr 8.06, which is a normal and routine function of KCPC.

         We begin by noting the difference between a defendant being sent to KCPC for a competency to stand trial examination pursuant to KRS 504.100 and a defendant in need of an expert witness to assist him or her in pursuing a defense based on insanity or other mental illness or condition.[6] KRS 504.100 requires the trial court, if it has reasonable grounds to believe the defendant is incompetent to stand trial, to appoint a psychiatrist or psychologist to report on the defendant's competency to stand trial for the crime charged. Gabbard v. Commonwealth, 887 S.W.2d 547, 550 (Ky. 1994). Generally, the function of a competency to stand trial proceeding conducted through KCPC is for the benefit of the trial court to assess whether a defendant has the present mental capabilities to communicate with trial counsel and assist in his or her own defense. The expert witness appointed under KRS 504.100 for a competency to stand trial evaluation at KCPC does not "belong" to the defendant, but rather the expert acts as an agent of the trial court. Cf. Cain v. Abramson, 220 S.W.3d 276, 280 (Ky. 2007) (a mental health expert retained by the Commonwealth to evaluate a defendant's competency to stand trial pursuant to a motion under KRS 504.070 and RCr 7.24(3)(B)(ii) "is not a legal adversary or an 'agent of the prosecution[ ]).

         In contrast, a mental health expert to which an indigent defendant may be entitled under Ake serves the purpose of assuring that a defendant is placed upon the same footing as a person of means in assessing possible defenses and trial strategies relating to his mental state at the time the crime was committed. Ake at 77. An expert appointed under Ake may accurately be described as "belonging" to the defendant, unlike the evaluator acting as an agent of the trial court in a competency to stand trial proceeding.

         In cases such as this, where a strong indication exists that the defendant may be suffering from mental issues compelling the appointment of a mental health expert under Ake, for practical reasons KCPC should not be designated as the indigent defendant's mental health expert. First, as reflected in the KCPC letter in this case, KCPC unambiguously disclaims the authority of its staff members to act in such a capacity. Therefore, under these circumstances the trial court should invoke its duties under Ake and allot funds to the defendant so that he or she may defend himself or herself pursuant to the constitutional standards described in that decision.

         Further, in such cases where an Ake expert witness is obviously required, the Commonwealth in the normal course of events will seek its own mental health expert as a rebuttal witness. KCPC, as a state mental health facility, is logically situated to provide that rebuttal expert. It would not make sense for that reason, too, to consider KCPC as a viable alternative for the defendant when, as here, there is an unambiguous presentation of mental illness that may be significant to the defendant's case, and KCPC will necessarily and foreseeably be needed by the Commonwealth to act as its expert.

         Finally, we note that perhaps the more common situation is where, unlike here, the facts are ambiguous and inconclusive as to whether the defendant is entitled to a mental health expert from the outset. In such situations, the trial court may properly send the defendant to KCPC for an evaluation to assist the trial court (often perhaps in conjunction with a competency evaluation), for its own benefit, not the defendant's, to determine in the first instance if the defendant qualifies for an outside independent mental health expert under Ake. See KRS 504.070. This procedure is consistent with our holding in Binion: "The trial judge properly required Binion to submit to an initial evaluation through KCPC. If such an evaluation is conducted by a qualified mental health professional capable of making an accurate and impartial appraisal of the mental status of the patient, it can be of great assistance to the trial ...

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