Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary , 919 F.2d 1091 ( 1991 )

KENNEDY, Circuit Judge,

dissenting, with whom Circuit Judges KRUPANSKY, RALPH B. GUY, Jr., and BOGGS concur in all parts, Circuit Judge MILBURN concurs in parts III & IV, Circuit Judges DAVID A. NELSON and RYAN concur in part IV, Circuit Judge WELLFORD concurs in parts I, II & IV, and Circuit Judge ALAN E. NORRIS concurs in parts I, III & 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, I 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, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), violation and that the jury instructions did not violate appellant’s constitutional rights.

I.

Use Of the Confession to Establish Criminal 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 was prejudicial error because the confession was the only concrete, uncircumstan-tial 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 trial or conduct of the defense would have been different had the confession been suppressed.

It is beyond a reasonable doubt 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.

Further, less than an hour after the robbery, appellant and Kruse went to a Gary Ramell’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, payable 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 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 v. Alabama, 849 F.2d 536 (11th Cir.1988), cited by the majority 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 “ ‘[i]f I 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. State, 418 So.2d 214, 219 (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 equivocal 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.

II.

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 1097, which “tended to undermine at the sentencing hearing the claimed mitigating circumstances of diminished capacity due to the use of drugs and alcohol.” Id. at 1097. According to the majority, the confession was “extremely prejudicial” in the sentencing phase because it omitted reference to drug use³ and because its tenor was “cold.”⁴ Neither of -these reasons persuades me that admission of his confession prejudiced appellant, 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 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, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (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 before 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. Eljorn 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 anybody ... [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.

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 all 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, I am convinced beyond a reasonable doubt that admission of the confession was harmless error.

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 Korden-brock, 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 “cold” 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 it 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, 84 S.Ct. at 230; 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.

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 1098-99. I strongly disagree with its conclusion, however, that “[i]t 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 conclusion 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 appellant introduced.⁶ See Fahy, 375 U.S. at 87, 84 S.Ct. at 230; Owen, 849 F.2d at 540. After considering that evidence, I 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 1095, 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.

III.

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,⁷ 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 right.

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. Niz-ny. 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 voluntarily 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 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 not 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,⁸ plus counsel’s failure to take any of the obvious steps to obtain Dr. Nizny’s assistance, caused the lower court to conclude that appellant was not “denied” psychiatric assistance; he was merely maneuvering to create an appealable 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, 107 S.Ct. 1983, 95 L.Ed.2d 823 (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 has been committed.”) Id. 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 falla-ciousness 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.

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. Dr. 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. Gu-reasko 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, 105 S.Ct. 1087, 84 L.Ed.2d 53 (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, 105 S.Ct. at 1096. The Court qualified this right:

This is not to say, of course, that the indigent defendant has a constitutional right 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 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 concerning 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, 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, 105 S.Ct. at 1096. 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 which the — defendant’s attorneys 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, objective 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, right?

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 by Ake. Appellant is requesting, and the majority would grant, only the very best defense expert. However, Ake requires at most only a competent psychiatrist to “assist in evaluation, preparation, and presentation of the defense.” 470 U.S. at 83, 105 S.Ct. at 1096. 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.” Id. 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.” Id. 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 (5th 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 sanity 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 F.2d 1383, 1391 (5th Cir.) (pre-Ake ease .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, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979).

Finally, even if the state court did improperly deny appellant access to Dr. Niz-ny, 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 pharmacology 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 5th, 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: ... [D]o you have an opinion as to whether or not Paul Kordenbrock was psychologically and physically addicted to drugs at 9:30 on Saturday, January 5th, 1980?

A: I think he was physically and psychologically addicted to alcohol. If the street tablets contained Diazapam he was certainly psychologically and 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. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (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 rights 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, 105 S.Ct. at 1096. Ake only 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 “[wjithout 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, 105 S.Ct. at 1097 (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 to 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, 102 S.Ct. 1724, 72 L.Ed.2d 143 (1982). The standard for 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, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). It is clear 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,—U.S.-, 110 S.Ct. 206, 107 L.Ed.2d 159 (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.

I therefore conclude that the instruction did not deprive appellant of due process or invade any constitutional right.

1 . Although the state did not honor appellant’s right to end the interrogation, I 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 product of free will and rational choice. See United States v. Murphy, 763 F.2d 202 (6th Cir.1985). Voluntariness of a confession is a mixed question of law and fact and a reviewing court "will not disturb the trial court's findings ... unless clear error appears on the record.” ¡d. 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 statement, the record as a whole indicates that the trial court's finding of voluntariness was not "clear error.” Appellant was cogent, there was no force or threat of force by police, and he was not emotionally- distressed. Cf. United States v. Brown, 557 F.2d 541 (6th Cir.1977).

2 . Regardless of whether Burks v. Perini, 810 F.2d 199 (6th Cir.1986) is distinguishable from the present appeal, I see no alternative but that appellant would have been forced 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 diminished capacity. He would have done so because of the strength of the evidence pointing to his guilt.

3 . The 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 1095. Nowhere in the transcript of the interrogation is 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 (although 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.

4 . 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.”

5 . In support of this contention, the Court points out that the jury, during sentencing deliberations, asked the trial judge whether it could impose life imprisonment with no parole, indicating that the jury was struggling 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 influenced by the confession.

6 . In making this statement, I 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, 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 opportunity to develop 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 writ that appellant’s sanity was never considered as a defense:

Q: I understand that your belief was at all times that your client was not insane, nor was he incompetent to stand trial. Is that correct? A: That's my — that was my belief, and that is my belief.

Q: ... [N]ever 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.

8 . The District Court also found that Dr. Nizny's preliminary report was also unfavorable in that he found appellant had an "anti-social personality,” that is, he had no regard to the rights of his fellow man or woman. Also, Dr. Nizny concluded and reported that "it could not be said that rehabilitation was probable." Kordenbrock v. Scroggy, 680 F.Supp. 867, 872 (E.D.Ky.1988). The majority state that Dr. Nizny’s report "indicates that Kordenbrock was not 'a man totally self centered or totally devoid of feeling for another person.’" Majority Opinion at 1106. 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 or totally devoid of feeling for another person. Then again, he described being preoccupied with dog footprints on his car and had promised his girlfriend that he would have it washed. After the crimes, he described attention to this but none to his victims.

(Emphasis added.)

9 . Dr. Bland was a physician specializing in psychiatry. He testified that he would have been able to examine all areas of appellant that Dr. Nizny was requested to examine:

Q: Are any of the [nineteen] questions posed in the letter from Mr. Monahan [appellant’s trial counsel] to Dr. Nizny ... 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 I would be able to answer all of them in any substantial way. That would depend on a lot of factors. But I don't see any here that I 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 commonly posed questions in cases where mental capacity or mental illness might be an issue?

A: Yes.

THE COURT: Turn 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.

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 period is a thorough history taking important?

A: Yes.

Q: Would you include in that history as part of your opinions effects of any drugs or alcohol which the defendant 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 those 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.