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Commonwealth v. Ferguson

Supreme Court of Kentucky

August 29, 2019



          COUNSEL FOR APPELLANT/CROSS-APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General

          COUNSEL FOR APPELLEE/CROSS-APPELLANT: Samuel N. Potter Assistant Public Advocate Rachel Abigail Vinales Assistant Public Advocate


          WRIGHT, JUSTICE.

         The Commonwealth of Kentucky appeals from the Court of Appeals' reversal of the trial court's denial of a motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr 11.42). The Court of Appeals held that Appellee/Cross-Appellant, Alger Ferguson's, counsel was ineffective in representing Alger during his murder trial leading to his conviction. Therefore, the appellate court reversed and remanded to the trial court for a new trial. Alger cross-appeals, asking this Court to affirm the Court of Appeals' result even if we disagree with the standard applied by that court.

         I. BACKGROUND

         On August 9, 2003, Alger was at his home with his nephew, Parker Ferguson. The two had been shooting guns earlier in the day and had spent the evening drinking and smoking marijuana together. Parker suffered two gunshot wounds-one above his lip and another to his temple, which was fatal. Alger was the only other person in the home at the time. Alger called the police and, when they arrived on the scene, told them Parker had shot himself. A .40 caliber Browning semi-automatic pistol was on the floor next to Parker's body. According to the autopsy, the shot above Parker's lip was taken from a distance of at least 18-24 inches away and would not have been immediately disabling. The contact wound to Parker's temple was immediately incapacitating. Alger was indicted for Parker's murder.

         Alger was represented at trial by private attorney Leo Marcum.[1] Two to three weeks prior to the start of trial, Alger informed Marcum that he would be representing himself. Before trial, Marcum obtained a competency evaluation for Alger. Then, the morning of trial, Alger informed Marcum that he wanted him to start the trial and he would step in at some point. That morning, Marcum was successful in having the trial court suppress certain evidence. During voir dire, Marcum told the court he only had one testifying witness- Alger. Alger complains that Marcum had neither consulted nor hired experts and that he did not find other witnesses to support his defense theory, which was that Parker's death was a suicide. Alger also complains that Marcum made no opening statement. However, in fact, Marcum did not fail to give an opening statement; rather, he reserved his opening statement until after the close of the Commonwealth's case. This is not uncommon trial practice among the criminal defense bar. Oftentimes, defense attorneys elect to hear the evidence presented against their clients prior to giving their opening statements. In this case, Marcum was uncertain at the beginning of trial if his client would testify to a believable fact pattern-and had been told by Alger in the weeks leading up to trial that Alger planned to represent himself.

         The Commonwealth's witnesses included Kentucky State Police Detective Paul Cales, Coroner Keith Moore (who was also a retired KSP detective), and State Medical Examiner William Ralston. These witnesses testified regarding the investigation, blood spatter evidence, the firearm, and Parker's autopsy. Some family members also testified regarding Alger's behavior on the night of Parker's death. Marcum cross-examined each of the witnesses, though Alger now complains about the nature of said cross-examination. Alger now complains that Marcum did not object when the Commonwealth's witnesses testified as to their opinions concerning the capability of the firearm in question-and the Court of Appeals also made much ado of this point. However, we note that Marcum actually solicited the information about the firearm during his cross-examination-and that it was beneficial to Alger's defense as it supported the version of events to which he would later testify.

         At the close of the Commonwealth's case, Alger moved to proceed pro se and the trial court granted his motion-with Marcum as stand-by counsel. Alger re-called some of his family members who had testified for the Commonwealth and cross-examined them and then testified on his own behalf. The jury convicted Alger and recommended a sentence of life imprisonment. The trial court sentenced him accordingly. Alger filed a direct appeal to this Court and we affirmed the trial court in Ferguson v. Commonwealth, No. 2006-SC-000156-MR, 2007 WL 4462368 (Ky. Dec. 20, 2007). Alger then filed a pro se RCr 11.42 motion to vacate his conviction due to alleged ineffective assistance of counsel. Eventually Alger obtained post-conviction counsel with the Department of Public Advocacy (DPA) to assist in his 11.42 proceedings. DPA retained Shelly Rice, a crime-scene reconstructionist, to prepare a report and testify at the hearing on Alger's 11.42 motion. Rice's report spanned more than 100 pages and discussed different aspects of the case such as the firearm at issue, self-inflicted non-contact wounds, blood spatter evidence, and her perceived deficiencies in the Commonwealth's case. Rice opined that it was more likely than not that both of Parker's gunshot wounds were self-inflicted.

         The trial court heard Rice's testimony and that of Alger, Marcum, and DPA regional director Roger Gibbs at the hearing. It ultimately denied Alger's motion based on Strickland v. Washington, 466 U.S. 668, 687 (1984). There, the Supreme Court of the United States held:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

         In making this finding, the trial court stated: "The Defendant, in claiming that the victim committed suicide, had what the Court believes to be an almost insurmountable burden of convincing the jury that the victim first shot himself at an angle from an upper trajectory [(we note that the evidence was actually that the bullet entered above Parker's lip at a downward trajectory)] at a distance of more than two feet, only wounding himself, and then put the gun to his head and killed himself." Marcum had testified at the hearing that this defense was a difficult one of which to convince the jury. The trial court agreed. It held that "the representation of [Alger's] former attorney, within the parameters with which he had to operate, was not deficient." It further held that "if expert witnesses had been obtained and more vigorous cross-examination of the Commonwealth['s] witnesses had taken place, there does not exist a reasonable probability that the outcome would have been different, and that therefore the Defendant's rights were not prejudiced."

         On appeal, the Court of Appeals acknowledged the Strickland standard, but did not base its reversal on it. Rather, it applied the standard set forth in United States v. Cronic, 466 U.S. 648, 659 (1984), which stated: "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable."

         Applying Cronic, the Court of Appeals held that, while "Alger's trial counsel performed some pretrial work on behalf of his client, including a successful motion to suppress[, ] ... an examination of the record at trial reflects that counsel made no genuine effort to support his client's suicide defense." Therefore, the Court of Appeals held Marcum had completely failed to represent Alger at trial and failed "to subject the prosecution's case to meaningful adversarial testing." Id. at 659. Based on this review, the Court of Appeals reversed the trial court's denial of RCr 11.42 relief and remanded for a new trial. We disagree with the Court of Appeals and, therefore, reverse its holding and reinstate 'the trial court's order denying RCr 11.42 relief. Alger cross-appeals asking this Court to affirm the Court of Appeals' result even if this Court disagrees that Cronic is the appropriate standard. However, for reasons that follow, we reverse based on the Strickland standard as well.

         II. ANALYSIS

         We will first analyze whether Cronic is the appropriate standard to apply in this case. In Bell v. Cone, 535 U.S. 685, 696-97 (2002), the Supreme Court of the United States explained: "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete. We said 'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.' Cronic, supra, at 659 . . . (emphasis added)." The Cone Court went on to state that, in that case, the argument was "not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind." Cone, 535 U.S. at 697.

         The same is true here. While Alger would have preferred that his attorney conduct cross-examination of witnesses in a different manner, that is more a question of "degree" than of "kind"-just as was the case in Cone. Marcum did cross-examine the Commonwealth's witnesses, often bringing out points that supported his client's story. Furthermore, he obtained a competency evaluation for Alger and got certain evidence suppressed on the morning of trial. Marcum had reviewed the record, met with his client numerous times, and interviewed Alger, the investigating officer, the Commonwealth's Attorney, and others in the community.

         This case simply does not rise to the requisite level to warrant the application of Cronic rather than Strickland. We will now consider whether the Court of Appeals' result should be upheld under Strickland. As noted, under that standard, we must first determine whether the counsel's representation was deficient and then determine whether such deficiencies prejudiced the defense in such as way as to "deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.

         This Court has held, "[t]here is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (internal citations and quotations omitted). Furthermore, *[a]s a reviewing court, we 'must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.'" Id., quoting Haight v. Commonwealth, 41 S.W.3d 436, 441-42 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).

         As we have held:

We must analyze counsel's overall performance and the totality of circumstances therein in order to determine if the challenged conduct can overcome the strong presumption that counsel's performance was reasonable. Haight, 41 S.W.3d at 441-42. In addition, the trial court's factual findings and determinations of witness credibility are granted deference by the reviewing court. Id. Finally, we apply the de novo standard when reviewing counsel's performance under Strickland. Bussell, 226 S.W.3d at 100.

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).

         We will turn to the facts in the case at bar in order to apply this deferential standard. Alger argues that his counsel was deficient at trial for several reasons including the fact that he did not consult with experts in preparation for trial or have experts to testify at his trial. At the RCr 11.42 hearing, Alger's newly-attained expert opined that it was more likely than not that Parker had shot himself, thereby causing his own death. Therefore, Alger now faults Marcum for not conducting an appropriate investigation into the defense. However, as this Court has stated, counsel's "investigation need not be 'an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct,' but rather 'must be reasonable under all the circumstances.'" McGorman, 489 S.W.3d at 743, quoting Haight, 41 S.W.3d at 446.

         Here, the circumstances were difficult. The victim had two gunshot wounds to his head-one of which the medical examiner opined had occurred from a distance of eighteen to twenty-four inches away, as it did not have characteristics of stippling as would occur in a closer shot. Furthermore, this shot above Parker's lip had entered from above and to the side, having a downward, lateral trajectory. Marcum testified at the RCr 11.42 hearing that having an expert to testify that Alger could have shot himself in such a manner as consistent with the bullet entry wound would not have been beneficial, as it seemed to be a "palpable lie."[2]

         To delve further into the circumstances surrounding Marcum's decision, we note that the handgun was more than seven inches in length. It is difficult to imagine a scenario in which that handgun could be manipulated in a manner to create a downward, lateral trajectory from two feet away so as to strike the person operating the firearm in the mouth. In fact, when asked on cross-examination during the RCr 11.42 hearing, Rice could not demonstrate how this was physically possible. Rice merely asserted, without having tested the gun in question, that it is possible that stippling may not have been present if fired from as close as twelve inches away. She arrived at this figure from a case she had found in academic literature of a self-inflicted gunshot wound fired from a .38 caliber (significantly less powerful) handgun from twelve to eighteen inches away which did not cause stippling. She faulted the Commonwealth and defense for not performing testing that she did not perform herself.

         But, even if we were to assume that Rice was correct that it was physically possible for Parker to have self-inflicted this wound, her testimony goes in direct contradiction to Alger's own testimony and defense theory. According to Alger, Parker was holding the gun to his head when Alger exited the room before hearing two gunshots. He believed the gun discharged the second time when it hit the floor. Therefore, Rice's suicide theory stands in direct contradiction from the testimony of Alger, the only witness.

         Furthermore, the semi-automatic handgun was not in the cocked position when recovered by police. After being fired, a semi-automatic firearm would return to the cocked position, ready to fire again. Alger explained why the gun was not cocked when police found it, as he stated he had picked it up and un-cocked it before putting it back on the floor next to his nephew's body. Rice, however, testified at length about the importance of the position of the gun to her analysis. She also faulted Marcum for failing to consult with an expert or test the gun to determine whether it could have somehow malfunctioned, causing it to be de-cocked after Parker shot himself. However- again-this would have been in direct conflict with Alger's testimony that the gun was found in the un-cocked position because he had de-cocked it himself.

         Rice also placed much importance about a live round found near Parker's feet, and indicated it showed potential characteristics of a misfire. She said this would corroborate Alger's statement that Parker was handling the gun in a manner in which it was not intended to be handled. However, we note this live round could have been ejected from the gun by Alger or been the result of a misfire when he was handling the weapon. It in no way definitively links Parker to his own death. This evidence has little to no bearing on the fact pattern as put forth by Alger in order to create a reasonable likelihood the result at trial would have been different.

         Rice had the benefit of hindsight and was able to examine the entirety of the trial in making her determinations. However, even with that, we fail to see how any of the theories she presents regarding the weapon show Marcum's representation was deficient to such a degree as to require reversal under Strickland.

         Rice also takes issue with the blood spatter evidence adduced at trial. She asserts that a void in Parker's hand and blood found on it indicate that it is likely that he shot himself. However, as noted, it is difficult to see how Parker could have held the gun in order to have inflicted the shot above his lip. The photographs to which she directs our attention do show a void in the blood stains in the palm of Parker's hand, however, the Commonwealth asserted at trial that was caused by the beer can found near his body.

         Rice also argues that blood spatters and blood flow patterns indicate that Parker was seated in the chair when the first shot entered above his lip and then slid to the floor, where he was seated upright when the second shot entered his temple. Again, however, this is in direct contradiction of Alger's testimony that Parker first shot himself in the temple before the second shot entered above his lip, caused by the firearm discharging as it struck the floor.

         Roger Gibbs, a regional DPA director, also testified at the RCr 11.42 hearing as an expert in criminal defense. While he was critical of Marcum's preparation and representation of Alger, he could not say that had Marcum consulted experts that it would have made enough difference "to carry the day." This simply does not rise to the Strickland standard which requires that "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         Despite their criticism of Marcum's representation, neither the testimony of Rice nor that of Gibbs created a "reasonable probability that . . . the result of the proceeding would have been different." Id. The manner in which Rice arrived at her conclusion that it was more likely than not that Parker's death was a suicide completely undermined Alger's own testimony and defense theory. Alger did not abandon this theory after his conviction-as it is put forth in his RCr 11.42 motion as well.

         Alger now asserts that he was indigent at trial as evidenced by the fact that he never paid Marcum's fee-and that Marcum should have sought funds from the court to obtain expert consultation or testimony. However, there was never a determination of indigency here. We cannot go outside the record and assume that Alger failed to pay Marcum due to indigency rather than that he failed to pay him for some other reason. In this case, Marcum indicates that he and Alger did discuss obtaining an expert and that they both agreed it would not be beneficial. Further, we fail to see how the lack of an expert to consult or testify deprived Alger of a reliable result at trial. Even the theories Rice could concoct with the benefit of hindsight were largely fantastical.

         Alger also argues that Marcum's representation was deficient as he was unprepared for trial. He says this is evidenced by the fact that he did not make an opening statement. We note that while Marcum postponed making an opening statement until the close of the Commonwealth's case, he did not, as Alger asserts, simply fail to make one due to unpreparedness. Rather, Marcum knew from his many conversations with Alger that his client planned to testify at trial. He reserved his opening, however, because he was unsure as to the exact content of what Alger planned to say in his testimony, as some of his statements to police differed slightly from what Alger told Marcum he planned to say at trial.

         Marcum indicated at the RCr 11.42 hearing that "Alger made it almost impossible to get ready" for trial and that "he wouldn't assist with his defense in any meaningful way." As noted earlier, Marcum was under the belief that Alger would represent himself until the very day of trial. Of course, he was still the attorney of record and had duties to his client, as Alger had not yet moved the court to proceed pro se. However, Marcum had prepared for the trial throughout his twenty-six months of representation. Furthermore, Marcum testified that Alger once revealed his trial strategy to him during a conversation about self-representation. According to Marcum, Alger stated he had a way "to get out of this." Marcum testified that Alger told him "that he wasn't going to go to prison because the women on the jury panel wouldn't allow it."

         Alger complains that Marcum did not effectively cross-examine the Commonwealth's experts. However, as discussed above, in many of these complained-of instances, Marcum was able to elicit information on cross-examination that supported Alger's story as to how the events unfolded on the night of Parker's death. Even if these experts were not shown to be qualified to give the opinions regarding firearms and blood spatter that they gave, Marcum (sometimes soliciting these opinions himself) used them to his client's advantage.

         While it is true that Marcum did make some mistakes at trial, those mistakes did not render his assistance ineffective. For example, Marcum inadvertently opened the door to some (but certainly not all) evidence he had gotten suppressed at trial. Marcum was also not successful in introducing certain impeachment evidence. The dissent also insists that Marcum was deficient in failing "to subject the Commonwealth's theory of motive to proper scrutiny." We must keep our standard of review in mind in light of these purported deficiencies. "As a reviewing court, we 'must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.'" Bussell, 226 S.W.3d 96, 103, quoting Haight, 41 S.W.3d at 441-42.


         Marcum testified he was faced with a difficult defense and a client who would not consider taking a plea deal because he was certain he could sway the female members of the jury panel in his favor. There is not a reasonable probability that the outcome of the trial would have been different but for any of Marcum's purported deficiencies. Therefore, we agree with the Commonwealth and reverse the Court of Appeals and reinstate the trial court's order denying Alger RCr 11.42 relief.

         All sitting.

          Minton, C.J.; Buckingham, Hughes, Keller, VanMeter and Wright, JJ., concur.


         Respectfully, I dissent. I would affirm the Court of Appeals and hold that Leo Marcum provided Alger Ferguson ineffective assistance of counsel as defined in Strickland v. Washington[3] and remand for a new trial.


         I agree with the majority's holding that U.S. v. Cronic[4] does not apply to the facts at bar. The presumptive prejudice to a defendant envisioned by Cronic is only present in very narrow circumstances: (1) when a defendant is denied counsel outright; (2) when counsel completely fails to subject the prosecution's case to adversarial testing; or (3) when the circumstances surrounding the case make the likelihood that any lawyer could provide effective assistance so small that a presumption of prejudice is appropriate, like the circumstances present in Powell v. Alabama, 287 U.S. 45 (1932).[5]None of these circumstances are present in this case.

         However, I believe that under Strickland, Ferguson is ...

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