David Sanders v. Commonwealth of Kentucky ( 2022 )

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RENDERED: AUGUST 18, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0171-MR
DAVID SANDERS APPELLANT
ON APPEAL FROM MADISON CIRCUIT COURT
V. HONORABLE JEAN CHENAULT LOGUE, JUDGE
NO. 87-CR-00018
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
David Sanders appeals as a matter of right1 from the Madison Circuit
Court’s order denying his motion to reopen his RCr2 11.42 proceeding
pursuant to CR3 60.02(e) and (f) and RCr 10.02 and 10.06. On appeal,
Sanders argues that this Court’s recent decision in Conley v. Commonwealth,
599 S.W.3d 756 (Ky. 2019), created a new entitlement for criminal defendants
to funds for a mental health examination independent of that conducted by
KCPC. Sanders argued in his prior appeals that he was entitled to an
evaluation by a second, independent mental health expert. He now asserts
that his claim should be reevaluated under the new rule announced in Conley.
1 Ky. Const. § 110(2)(b).
2 Kentucky Rules of Criminal Procedure.
3 Kentucky Rules of Civil Procedure.
We disagree, as Conley did not create a new rule, it merely clarified the existing
language of KRS 31.185, which applies to indigent defendants and defense
attorneys operating under Chapter 31 - the Department of Public Advocacy.
Since Sanders was not an indigent defendant, KRS 31.185 and Conley do not
apply to his situation. Even if they did apply, Sanders received the assistance
of an independent mental health expert who examined him and testified at trial
in support of Sanders’ insanity defense. We have held already in Sanders’ prior
appeals that his expert’s testimony, and defense counsel’s retention of the
expert’s services, did not amount to error or ineffective assistance of counsel.
Accordingly, we affirm the trial court’s order denying Sanders’ CR 60.02 motion
to reopen.
I. Background
This case has been making its way through Kentucky courts for over
thirty-five years and has been reviewed by this Court multiple times. Thus, we
develop the facts and procedural history only to the extent necessary to resolve
the issue at hand. In 1987, Sanders was convicted of two counts of first-degree
robbery and two counts of capital murder for killing and robbing the proprietor
of a convenience store and a customer who happened to be in the store. Each
victim was shot once in the back of the head. At trial, Sanders was
represented by private counsel, presented a single defense (insanity), and was
evaluated by an independent mental health professional, who testified as to
Sanders’ insanity at the time he committed the offenses.
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Prior to Sanders’ trial, at defense counsel’s request, Sanders’ mental
health and psychiatric condition were evaluated by the Kentucky Correctional
Psychiatric Center (“KCPC”) to determine his competency to stand trial and
whether he was insane at the time he committed the crimes. KCPC conducted
a six-week psychiatric evaluation, with a team of social workers, psychologists,
a psychiatrist, and a neurologist. Dr. Walker was the lead KCPC investigator
and prepared a report summarizing the team’s collective findings that Sanders
was competent to stand trial and did not suffer from a mental condition that
compromised his ability to conform his behavior to the law. Dr. Walker
testified as the Commonwealth’s rebuttal witness at trial.
Sanders’ counsel also retained Dr. Cooke, a clinical psychologist, to
evaluate Sanders’ mental condition and serve as the defense mental health
expert, on a pro bono basis. At trial, Dr. Cooke testified that Sanders satisfied
the legal standards for insanity. However, based on the evidence presented,
including Sanders’ own testimony, the jury found Sanders’ insanity defense
unpersuasive and convicted him. Sanders received two death sentences for the
murder convictions and two twenty-year sentences for the robbery convictions.
On direct appeal, this Court reviewed Sanders’ forty-one alleged errors,
both preserved and unpreserved, and affirmed the convictions and sentences.
Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990). In 1993, Sanders filed
a collateral attack pursuant to RCr 11.42 seeking to vacate, set aside, or
correct his sentence, alleging twenty-six errors, including the one he now raises
in his motion to reopen: that his trial counsel was ineffective for failing to seek
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funds to retain an additional independent mental health expert. The trial court
denied him RCr 11.42 relief, and this Court affirmed. Sanders v.
Commonwealth, 89 S.W.3d 380 (Ky. 2002), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Specifically, this Court
found that Sanders’ counsel was not ineffective as Sanders had access to a
qualified mental health expert to establish his insanity defense; the jury simply
rejected the opinion of Dr. Cooke. 89 S.W.3d at 387–88. Further, this Court
held that Sanders presented no evidence that the jury would have accepted a
similar opinion from a different/additional expert, and that Sanders’ counsel
effectively cross-examined the Commonwealth’s expert at trial. Id.
In 2005, Sanders filed a motion to vacate his sentence pursuant to CR
60.02, essentially attempting to revive previously raised and resolved issues.
The trial court denied his motion, which this Court affirmed. Sanders v.
Commonwealth, 339 S.W.3d 427 (Ky. 2011). In 2019, Sanders filed yet another
motion to vacate his sentence pursuant CR 60.02, seeking to have his prior
RCr 11.42 proceedings reopened in light of this Court’s decision in Conley.
Sanders claims that under Conley, his trial counsel was ineffective for allowing
KCPC to evaluate him and for not obtaining another – or better – independent
mental health expert. According to Sanders, the Conley decision disavowed the
legal basis for this Court’s prior ruling rejecting this claim, thereby providing
grounds for reopening his case.
The trial court denied Sanders’ motion to reopen, noting that his claim
concerning his trial counsel’s performance had been fully litigated and
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determined by this Court not to have been in error or to have resulted in
ineffective assistance of counsel. The trial court further noted that even if
Sanders had received the assistance of an additional mental health expert, the
jury may not have been persuaded by that expert’s testimony either. Sanders
now appeals the trial court’s denial of his motion to reopen.
II. Standard of Review
To be entitled to relief pursuant to CR 60.02, a movant must
“affirmatively allege facts which, if true, justify vacating the judgment and
further allege special circumstances that justify CR 60.02 relief.” Foley v.
Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (quoting McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)). CR 60.02 is an
extraordinary remedy and the standard for granting a motion is extremely high.
Id. To reverse a lower court’s ruling on a CR 60.02 motion, the appellant must
show some “flagrant miscarriage of justice.” Id. at 886 (quoting Gross v.
Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
Moreover, “CR 60.02 is not a separate avenue of appeal to be pursued in
addition to other remedies, but is available only to raise issues which cannot
be raised in other proceedings.” McQueen, 948 S.W.2d at 416. Appellate
courts review the denial of a CR 60.02 motion for an abuse of discretion.
Foley, 425 S.W.3d at 886. “The test for abuse of discretion is whether the trial
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court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Id.4
III. Analysis
Sanders argues that under Conley, he was entitled to an additional
independent mental health expert. He further contends that Conley created
new law in this regard, which he asserts should apply retroactively to his case.
We disagree.
In Conley, this Court held that the trial court’s denial of an indigent
defendant’s initial request for funding for an independent mental health expert,
and instead ordering that a criminal responsibility examination be conducted
by KCPC, violated the defendant’s constitutional right to the appointment of an
independent mental health professional. 599 S.W.3d at 765. We stated that “if
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.” Id. (quoting 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
4 Sanders urges this Court to limit the application of the abuse of discretion
standard for reviewing CR 60.02 motions and instead apply a de novo standard of
review to what he argues is a mixed bag of factual findings and legal findings by the
trial court. However, our abuse of discretion standard is well-settled with regards to
CR 60.02 rulings and Sanders offers no compelling justification to disturb it.
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necessary mental health expert assistance as a person of means)). The Conley
court noted that KCPC, by its own admission and policy, is not an institution
that could fulfill that duty; that is, to act in the capacity of a defense expert
witness. Id. Because Conley’s sanity was at issue from the start of the case,
this Court ruled that the trial court’s initial denial of the defendant’s request
for funding for a mental health expert constituted an abuse of discretion, in
part due to the collateral errors resulting therefrom.5 Id.Conley clarified that the discretion afforded to trial courts under KRS
31.185 to authorize funding for an indigent defendant to secure the services of
an independent mental health examiner is not unfettered under Ake and
Binion. Id. at 766. This Court did not create a new standard in Conley; we
simply held that under the facts of that case, the trial court’s exercise of its
discretion was an abuse thereof. Importantly, KRS 31.185(1) applies to “[a]ny
defending attorney operating under the provisions of this chapter” – Chapter 31
5 The trial court’s error in initially denying funds to Conley was compounded by
the derivative errors that followed. While the trial court eventually granted funds to
Conley to retain Dr. Conner, an independent mental health expert, because the trial
court at the same time permitted the Commonwealth to commandeer Dr. Trivette, the
KCPC evaluator, to testify against Conley, the trial court’s later ruling granting Conley
funds did not fully “get the train back on the tracks” because of the side-switching
error, which led to other consequential errors. 599 S.W.3d at 767–68. Further, the
error in Conley was constitutionally significant because it deprived Conley of the same
advantage as would be available to a person of means, as mandated by Ake. Id. “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.” Id. These facts are
substantially different from the case at hand.
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– which governs the Department of Public Advocacy. Since Sanders was
represented by private counsel, Conley is simply inapplicable.
With respect to the competency of Sanders’ counsel, we previously
concluded that “Sanders had access to qualified mental health experts to
establish his insanity defense. His complaints about ineffectiveness are
without merit.” Sanders, 89 S.W.3d at 388. Indeed, we found nothing
problematic in Dr. Cooke’s testimony, or Sanders’ counsel’s retention of his
services, noting that “[t]he fact that an additional evaluation might be beneficial
to the defense does not add credibility to his claim. . . . The jury rejected the
opinion offered by Dr. Cooke and there is no reason to believe they would have
accepted a similar opinion simply because it came from a different defense
expert.” Id.
Thus, we affirm the trial court’s ruling that Conley does not justify
reopening Sanders’ case under CR 60.02. And as this Court has already
resolved Sanders’ claims, we likewise agree with the trial court that Sanders is
barred from further litigating this issue. See, e.g., St. Clair v. Commonwealth,
451 S.W.3d 597, 612 (Ky. 2014) (holding that “issues decided in earlier appeals
should not be revisited in subsequent ones[]”) (quoting Brown v.
Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010) (stating that the law-of-the-
case doctrine “refers to a handful of related rules giving substance to the
general principle that a court addressing later phases of a lawsuit should not
reopen questions decided by that court or by a higher court during earlier
phases of the litigation[]”) (citation omitted)).
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IV. Conclusion
For the foregoing reasons, we affirm the order of the Madison Circuit
Court denying Sanders’ CR 60.02 motion to reopen.
All sitting. All concur.
COUNSEL FOR APPELLANT:
David Michael Barron
Kentucky Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Stephanie Lynne McKeehan
Assistant Attorney General
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