Wilson v. Commonwealth

CUNNINGHAM, J.,

Dissenting:

Almost twenty-five years ago, on the night of May 29,1987, Deborah Pooley was getting out of her car at her apartment in Covington, Kentucky. Gregory Wilson and his girlfriend, Brenda Humphrey, forced Ms. Pooley back into her car at knife point and abducted her. The victim was taken to a secluded place on the flood-wall, where Wilson tied her hands with a lamp cord and raped her in the back seat of the car. All the time, Ms. Pooley was begging for her life. “Please don’t kill me. I don’t want to die.” In spite of her pitiful pleadings, Wilson strangled her to death. The two murderers then headed for Indiana. The victim’s naked body was discarded in a wooded thicket in a remote area. There, it was discovered over two weeks later, identifiable only by comparing dental x-rays on the remaining teeth. So needlessly and cruelly ended the earthly existence of one Deborah Pooley.

The day after the murder, Wilson and his helper callously went on a shopping spree in Indiana using the victim’s credit card. Their haul included women’s shoes and hosiery, a man’s Seiko watch, a woman’s Gruen watch, cosmetic items, clothing and gas.

I briefly recount this terrible night a quarter of a century ago so we don’t lose sight of the horrific crime committed by Gregory Wilson. So that in balancing our scales of rights and wrongs, we don’t forget after all these years that an innocent person named Deborah Pooley was ruthlessly murdered and her killer is still in the courts of this state.

Gregory Wilson was tried and convicted and sentenced to death in 1988 after going through at least a half dozen defense lawyers and finally serving as co-counsel himself. The murder conviction was upheld by this Court in 1992. The kidnapping conviction went back and forth to this Court a couple of times. Wilson was back before this Court in 1998 on his RCr 11.42 appeal. We once again affirmed his conviction. He also filed a habeas corpus petition in the U.S. District Court which was denied in 2007, and the Sixth Circuit declined his appeal. In 2010, he was back before the trial court under CR 60.02 and, for the first time in twenty years of litigation, raised the issue of mental retardation and DNA testing. And now Gregory Wilson is back before us on that case.

I strongly disagree with the broad statement by the majority that “[bjecause Wilson was convicted before KRS 582.130-140 became effective, he could not have procedurally defaulted on his mental retardation claim.” Wilson first had the chance to raise any mental retardation issue at his trial. KRS 505.020 provided him the opportunity to raise mental retardation as a defense. Here is where this case is strikingly different from the Skaggs case, which is cited for support by the majority. Skaggs raised his own mental capacity from the beginning with his trial in 1982, and that issue was a part of his numerous challenges. Not only did Wilson fail to raise any mental impairment, but he acted as co-counsel in his own defense.

It is important to point out that Wilson was evaluated by the Kentucky Correctional Psychiatric Center (“KCPC”) prior to his trial. The court was advised of this evaluation and the conclusion that he was competent to stand trial. The full report has been retained by KCPC and never released to the Commonwealth. For all these years, the Commonwealth has been denied access to this information by KCPC, citing provisions of the Health Insurance Portability and Accountability Act (“HIPPA”) of 1996. We can presume that Wilson and his attorneys have had full access to this report for all this time. Over the past twenty-five years, Wilson has litigated his death sentence extensively. This is the third trip back before this Court. Never, until now, has he raised the mental retardation issue.

It is true, as the majority states, that KRS 532.130-140 was not enacted until July 13, 1990, some two years after Wilson’s trial. However, for over twenty-two years since its enactment, this remedy has been available to him in his post-trial litigation. This includes his RCr 11.42 motion in the Kenton Circuit Court, which was rejected and which this Court upheld in 1998; his petition for writ of habeas corpus filed in the U.S. District Court for the Eastern District of Kentucky, which was denied by the Court of Appeals for the Sixth Circuit in 2008; and his attempt to intervene in the CR 60.02 action of co-defendant, Brenda Humphrey, which was finally unsuccessful in 2005. He even filed a suit, pursuant to 42 U.S.C. § 1983, as late as 2010 challenging Kentucky’s lethal injection protocol. These are not to mention the opportunity over the last twenty-five years to bring an independent action under CR 60.02. In none of these actions did he raise either the issue of mental retardation or the DNA examination of the semen. It was not until April of 2010 that Wilson, for the first time, raised his mental status as an issue, as well as the request for further DNA testing, before the Kenton Circuit Court. With all of this time and extensive litigation, it is difficult to understand how he has not procedurally defaulted on these issues. I submit that just because persons are tried before the enactment of KRS 582.130-140, they are not immune from being procedurally in default.

Even if Wilson has not procedurally defaulted, the record is replete with evidence that he does not meet the statutory criteria for being mentally retarded.

To support his recent claim of mental retardation, Wilson has retrieved from his evidentiary dust bin old records, which were apparently in his exclusive possession for all these many years, showing an IQ evaluation of 62 at age fourteen. This came from old school records referring to him as mildly retarded yet able to adjust to school. Even his own evidence presented at this late hour shows that on the record, and without the necessity of a hearing, he has failed the second prong of the mental retardation definition. In light of Wilson’s subsequent behavior, including his acting as co-counsel in regard to his own defense and throughout the post-trial litigation, it is clear to me that the trial court was correct in finding that, in spite of the suspect low IQ record, there is insufficient proof of record that he suffers from a substantial deficit in adaptive behavior.

KRS 532.130(2) defines a mentally retarded offender as a “defendant with significant subaverage intellectual functioning existing concurrently with substantial deficits in adaptive behavior.” (Emphasis added.) There must be both a low IQ of 70 or below and a deficit in adaptive behavior. It is a two-prong test. It is abundantly clear to me, as it was to the trial judge from the extensive record, and without a hearing, that the second prong does not exist. It starts with the school people who proclaimed “his adjustment to school would be no problem” and runs through the extensive court record where he has successfully staved off the carrying out of his sentence for almost twenty-five years due, in large part, to his own legal prowess in representing himself.

There are over sixteen pages of handwritten pleadings in the record composed by Wilson. This includes a well-structured “Motion and Request for New Trial” filed on October 5, 1988. One only has to read these writings, placed in proper legal format, to be convinced that his mental retardation claim is totally without merit. The pleadings are well-written, articulate, organized, and possessed of the writing skills and vocabulary that many college graduates do not possess.

Even in protracted and complex capital litigation, common sense still has its place.

Much has happened in the world since Wilson’s 1988 conviction. We have seen the advent of DNA analysis and its value as an investigative opportunity. It is true that this science had not evolved at the time of Wilson’s trial and conviction to the point it is today. However, KRS 422.285 has been around since 2002 and, as in the mental retardation issue, the DNA testing request is a part of Wilson’s 2010 gang plank strategy. KRS 422.285(2)(a) states that a trial court “shall order” DNA testing if there is a “reasonable probability” that the defendant would not have been convicted if exculpatory results had been obtained from the testing. Even the majority states that a DNA result finding the semen on the backseat of the car belonged to someone else neither “exculpates nor inculpates” Wilson. At its most probative, it does not exonerate him.

Lay the words of the majority side by side: “This is quasi-exculpatory evidence because it neither exculpates nor inculpates him.” But then in the next breath our opinion states that the trial court must determine whether “a reasonable probability exists that the evidence would result in a more favorable verdict or sentence, particularly with respect to Wilson’s rape conviction.” If it is not exculpatory, then I fail to see where there can be a “reasonable probability” of it providing a more favorable verdict or sentence. The first finding precludes the latter. And we’ve already made the decision for the trial court. By remanding for what seems to me a useless exercise, we propel this case toward its third decade of litigation.

Any value of this tardily requested evidence is weakened even further when we consider the passage of time. We must assume that the car of the murder victim is still in existence, since I have learned of no claim by the Commonwealth being made otherwise. We do know, however, that it was abandoned for many days after the crime. After its discovery in a scrap yard, it was not removed from the premises for several days. Several people had access to the vehicle and numerous items had been removed. When it was recovered by the police, it was missing turn signals, ashtrays, radio controls, heater controls, a mirror, and the glove box had been emptied. Also, oil had been poured on the floorboard and in the back.

It appears that the majority of our Court today is remanding this issue to the trial court without regard to the overwhelming evidence of Wilson’s guilt. The records are replete throughout his litigation in state and federal courts of the overwhelming evidence of his guilt. In fact, the scientific evidence produced at trial concerning any hair or semen within the car was of small consequence. He and his co-defendant had both confessed several times. They were seen and identified as the couple who stayed at a hotel just after the murder driving the victim’s car and using her credit cards for a shopping spree. The overwhelming nature of the evidence was so noteworthy that it was mentioned in the federal court case of his habeas corpus action.

It is a sad commentary upon our judicial system that after almost twenty-five years since the crime was committed our Court today is proclaiming that we still haven’t got it right. It is certainly no solace to the family of Deborah Pooley.

I respectfully dissent.

In closing, I note that this Court is sending this case back to the trial court for further proceedings. Why do we invite additional issues and litigation on the DNA examination by asking the trial court to make findings on whether testing of the semen is warranted? I strongly urge that we use this remand to go ahead and test the DNA and have this issue removed from this incredibly elongated case forever.

SCHRODER, J., joins.